Judgments - R (On The Application of Rjm) (Fc) V Secretary of State For Work and Pensions Appellate

HOUSE OF LORDS

SESSION 2007-08

[2008] UKHL 63

on appeal from: [2007] EWCA Civ 614

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

R (on the application of RJM) (FC) (Appellant) v Secretary of State for Work and Pensions (Respondent)

Appellate Committee

Lord Hope of Craighead

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Lord Mance

Lord Neuberger of Abbotsbury

Counsel

Appellant:

Richard Drabble QC

Zoë Leventhal

(Instructed by Child Poverty Action Group)

Respondent:

John Howell QC

Natalie Lieven QC

(Instructed by Office of the Solicitor

Department of Work and Pensions)

Intervener (Equality and Human Rights Commission)

Written submissions only

Rabinder Singh QC

(Instructed by Bindmans LLP)

Hearing dates:

18 and 19 JUNE 2008

ON

WEDNESDAY 22 OCTOBER 2008

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

R (on the application of RJM) (FC) (Appellant) v Secretary of State for Work and Pensions (Respondent)

[2008] UKHL 63

LORD HOPE OF CRAIGHEAD

My Lords,

1. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Neuberger of Abbotsbury. I agree with it, and for the reasons he gives I would dismiss the appeal. I also agree with the additional observations by my noble and learned friend Lord Walker of Gestingthorpe.

LORD RODGER OF EARLSFERRY

My Lords,

2. I have had the advantage of considering the speech to be delivered by my noble and learned friend, Lord Neuberger of Abbotsbury in draft. I agree with it and, for the reasons he gives, I too would dismiss the appeal. I also agree with the additional observations of my noble and learned friend, Lord Walker of Gestingthorpe.

LORD WALKER OF GESTINGTHORPE

My Lords,

3. I have had the great advantage of reading in draft the opinion of my noble and learned friend Lord Neuberger of Abbotsbury. I agree with it and for the reasons given by Lord Neuberger I would dismiss this appeal. I venture to add only two brief comments, both based on the very helpful written submissions placed before the House by the intervener, the Equality and Human Rights Commission.

4. The first is to emphasise that for an individual to be without accommodation does not mean simply that he or she is homeless for the purposes of the Housing Acts (a legal classification which can include persons living in overcrowded or unsanitary accommodation). It means sleeping rough in doorways or on benches, often in a sleeping- bag or a large cardboard box, in the sort of conditions described by Baroness Hale of Richmond in R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396, para 78. Official statistics put the number of rough sleepers in England and Wales at a surprisingly low level (459 according to the Office of the Deputy Prime Minister in 2005, of whom about a quarter were in London). The amount of money saved by depriving some of these people of the disability premium is therefore relatively tiny, and the official justification for depriving them of it may seem callous. But statistics given by the intervener, in general conformity with the witness statements put in by both sides, indicate that most rough sleepers (90% of whom are men) have major health and social problems: 70% misuse drugs; 50% misuse alcohol; 39% have been in prison; 12% have been in care as children; 40% of young homeless women experienced sexual abuse as children or adolescents. These unfortunate people are unlikely to be much assisted by receiving cash-in-hand while they continue sleeping rough. Callous though it may seem, the Government is entitled to form the view that assistance should be given to them by other means. It is devoutly to be hoped that those other means are proving effective.

5. The other point on which I would comment is the expression personal characteristics used by the European Court of Human Rights in Kjeldsen, Busk, Madsen and Pedersen v Denmark (1976) 1 EHRR 711, and repeated in some later cases. Personal characteristics is not a precise expression and to my mind a binary approach to its meaning is unhelpful. Personal characteristics are more like a series of concentric circles. The most personal characteristics are those which are innate, largely immutable, and closely connected with an individuals personality: gender, sexual orientation, pigmentation of skin, hair and eyes, congenital disabilities. Nationality, language, religion and politics may be almost innate (depending on a persons family circumstances at birth) or may be acquired (though some religions do not countenance either apostates or converts); but all are regarded as important to the development of an individuals personality (they reflect, it might be said, important values protected by articles 8, 9 and 10 of the Convention). Other acquired characteristics are further out in the concentric circles; they are more concerned with what people do, or with what happens to them, than with who they are; but they may still come within article 14 (Lord Neuberger instances military status, residence or domicile, and past employment in the KGB). Like him, I would include homelessness as falling within that range, whether or not it is regarded as a matter of choice (it is often the culmination of a series of misfortunes that overwhelm an individual so that he or she can no longer cope). The more peripheral or debateable any suggested personal characteristic is, the less likely it is to come within the most sensitive area where discrimination is particularly difficult to justify. There is an illuminating discussion of these points (contrasting Strasbourg jurisprudence with the American approach to the Fourteenth Amendment) in the speech of Baroness Hale of Richmond in A L (Serbia) v Secretary of State for the Home Department [2008] UKHL 42, [2008] 1 WLR 1434, paras 20-35.

LORD MANCE

My Lords,

6. I have had the benefit of reading in draft the speeches of my noble and learned friends, Lord Walker of Gestingthorpe and Lord Neuberger of Abbotsbury. There is nothing that I would wish to add to their speeches on any of the issues on this appeal except justification.

7. I have found the issue of justification difficult. In view of the conclusions reached on the other prior issues, it is for the Secretary of State to justify the discrimination which (by virtue of regulation 21 of and para 6 of Schedule 7 to of the Income Support (General) Regulations 1987 (SI 1987/1967), as amended, exists against those without accommodation (rough sleepers) who otherwise satisfy the requirements for receipt of a disability premium contained in paras 11(a) and 12(1)((b) to Schedule 2 of the Regulations.

8. Such requirements are, in brief, that the claimant was entitled to statutory sick pay or was, or was to be treated as, incapable of work and was so either for 196 days in the case of a terminally ill claimant or for 364 days in any other case. In the case of the present claimant, the effect of the exclusion of rough sleepers is to reduce the sum that he would otherwise receive from £77.95 to the basic personal allowance of £54.65 a week payable under regulation 17(1)(a) and Schedule 2, para 1. On the face of it, to deny someone a benefit on account of his or her disability simply because he or she is without accommodation seems to involve a callous connection between two unconnected factors.

9. Similarly discriminatory treatment, in the form of an exclusion contained in regulations 12(4)(c) and 13(7)(f) of The Supplementary Benefit (Claims and Payments) Regulations 1981 (SI 1981/1525), existed under the previous supplementary benefit scheme and appears to have been simply carried over into the present income support scheme. The exclusion was condemned in categorical terms in pp 24 and 37-38 of the 1983 and 1986 editions of a CHAR (Housing Campaign for Single People) Guide to Housing and Supplementary Benefits:

This exclusion is grossly unfair. There is no reason why a single person sleeping rough should not receive additions for old age, baths, blindness, special diet, hospital fares, laundry, special wear and tear on clothing, or indeed any of the additional requirements which do not directly depend on the claimant having a home. There is a strong case that they require such additional payments precisely because they do not have the amenities of a home.

10. The evidence put before the court by the Secretary of State from Mr Damien Johnson, a senior executive officer employed by the Department for Work and Pensions, suggests that the discrimination was the result of a policy decision taken when the present income support scheme was introduced under the Social Security Act 1986. That appears incorrect. No fresh consideration appears to have been given in 1986 to the point, or to the objections which had been raised by CHAR, and nothing has been produced to explain the original basis upon which discrimination was thought appropriate under the previous supplementary benefit scheme. But the Secretary of State has through Mr Johnson put forward a rationale for the current approach, and it is for the court to consider whether and how far this can be said to have justified the discrimination occurring in this case in the second half of 2004.

11. The rationale is essentially two-pronged. First, the basic personal allowance is intended to cover most personal expenses. The disability premium is intended to cover additional expenses incurred by the disabled, such as additional heating costs, which, the Secretary of State considers, are less likely to be incurred by those without accommodation. Second, the Secretary of State does not wish to provide money to keep disabled people in their vulnerable position, albeit that it would potentially make that vulnerable position slightly more manageable. He prefers to target resources and assistance towards getting them out of that position, and he points to initiatives aimed at doing this.

12. In relation to the first point, the appellant correctly observes that disabled people with accommodation may not themselves incur any additional or abnormal expenses - they may for example live with family or friends or indeed squat - while disabled people without accommodation may have additional needs - eg for blankets, extra clothing, laundry, washing facilities or eating out or buying pre-made food - which those with accommodation do not. In relation to the second point, the appellant submits that steps taken to move disabled people into accommodation are no reason for not looking after their needs properly while they are without accommodation, and that the resource implications cannot be significant when estimates give the total number of all rough sleepers in the whole country as no more than 2000 to 4000.

13. The evidence is that 90% of rough sleepers are male, 75% of them over 25, 50% of them alcohol reliant, around 70% of them drug mis-users and 30-50% of them suffering from mental problems. Any idea that shortage of funds will incentive many if any disabled rough sleepers to move into accommodation seems unrealistic. On the other hand, there is force in the point made by the Secretary of State, in the light of the statistics, that further monies given to rough sleepers would be quite likely to be spent on purposes which were detrimental, rather that in satisfying such additional needs as they may be identified as having by reason of their disability. This point was taken up by the Master of the Rolls in the Court of Appeal ([2007] EWCA Civ 614; [2007] 1 WLR 3067, para. 57) when he gave, as his reason for holding that a policy of discrimination was justified, that The executive was to my mind entitled to form the view that there are better ways of assisting disabled homeless people than by providing money, which may be spent in ways which may do them more harm than good".

14. Although the present discrimination against a category of disabled may on its face appear callous, it was not discrimination on one of the core-protected (or suspect) grounds identified by Lord Hoffmann in R (Carson) v. Secretary of State for Work and Pensions [2005] UKHL 37; [2006] 1 AC 173, paras 15-17. Further, the justification advanced does involve an assessment of the needs of and of social policy towards disabled rough sleepers. Under the Human Rights Convention, it is for the Secretary of State to justify the discrimination as pursuing a legitimate aim and as bearing a reasonable relationship of proportionality to that aim. But the courts scrutiny of the justification advanced will not have the same intensity as when a core ground of discrimination is in issue.

15. With, I confess, some residual doubt, I have come to the conclusion that the rationale advanced by the Secretary of State for the policy of discrimination enshrined in the Regulations has been shown to have legitimate aims and to be, in its potential impact, sufficiently proportionate in its relationship to those aims to be regarded as justified. In common with the other members of the House, I would for these reasons therefore dismiss this appeal.

LORD NEUBERGER OF ABBOTSBURY

My Lords,

16. The Income Support (General) Regulations 1987 as amended (the 1987 Regulations) entitle disabled persons to a disability premium, except if they are without accommodation". By this appeal, the appellant, RJM, seeks to establish that the exclusion from disability benefit of disabled persons without accommodation is contrary to article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Introductory

17. The relevant facts and legal framework are lucidly set out in paras 4 to 16 of the judgment of Sir Anthony Clarke MR in the Court of Appeal, [2007] EWCA Civ 614, [2007] 1 WLR 3067, so I can summarise the basic features relatively briefly. Because of his mental health problems, RJM was incapable of working, and received income support, which initially included disability premium. In August 2004, payment of disability premium ceased to be made to RJM, on the ground that he had become homeless, although he continued to be paid his personal allowance, ie what may be seen as basic income support. The withdrawal of disability premium was effected pursuant to para 6 of Schedule 7 to the 1987 Regulations.

18. Income support is a means-tested benefit payable in circumstances set out in the Social Security Contributions and Benefits Act 1992. The effect of sections 124 and 135 of that Act is to entitle certain categories of people (including those with a disability) with no or low income to such amount or the aggregate of such amounts as may be prescribed". For present purposes, the amounts in issue are those prescribed by the 1987 Regulations.

19. Regulation 17(1) of the 1987 Regulations prescribes three main amounts. Para (a) provides for the personal allowance under Part I of Schedule 2 to the regulations, para (d) for any premium under Parts III and IV of Schedule 2, and para (e) for housing costs under Schedule 3. The effect of paras 11 and 12 of Part III of Schedule 2 is that a person incapable of work for a specified period is entitled to the payment of a disability premium". Para 6 of schedule 7, however, states that a claimant who is without accommodation is only entitled to benefit under regulation 17(1)(a). Hence, such a person cannot claim a disability premium, as it is payable under regulation 17(1)(d), even though he would be entitled to it if he were not without accommodation".

20. RJMs contention is that para 6 of Schedule 7 to the 1987 Regulations is incompatible with article 14 of the Convention, which provides:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

It is clear from the opening words that some right under the Convention must be involved before article 14 can be relied on - see, for instance, AL (Serbia) v Secretary of State for the Home Department [2008] UKHL 42, [2008] 1 WLR 1434, para 21. It is also clear that, even where there is a difference in treatment which appears to fall within article 14, there will be no discrimination which infringes the article unless the difference has no objective and reasonable justification - see for instance AL (Serbia), para 22.

21. In the instant case, the Convention right said by RJM to be involved is that contained in article 1 of the First Protocol to the Convention (A1P1), which states:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law".

22. There is no doubt that the effect of para 6 of Schedule 7 to the 1987 Regulations discriminates against disabled persons who qualify for income support and are without accommodation, as against disabled persons who qualify for income support and have accommodation: unlike the latter, the former are not entitled to disability premium. However, the Secretary of State for Work and Pensions contends that RJMs case must fail for three separate reasons. First, it is said that the claim is not within the scope or ambit of A1P1, as RJM has no inherent or other right to disability premium. Secondly, it is said that, even if the claim is within the ambit of A1P1, there is no discrimination on the basis of any status within article 14. Finally, it is said that, even if article 14 applies, the discrimination can be justified. I shall take these three arguments in turn, and will then deal with a point concerning the effect of decisions of the European Court of Human Rights (the ECtHR) on domestic rules of precedent

Is the claim within the ambit of article 1 of the First Protocol?

23. It is (plainly rightly) common ground that disability benefit is capable of being property for the purposes of A1P1. However, the basic point made by Mr John Howell QC, on behalf of the Secretary of State, is that the consistent jurisprudence of the ECtHR is to the effect that a claim, whether made under A1P1 or under article 14 relying on A1P1, cannot succeed if the claimant has no right or legitimate expectation to the possession in respect of which his claim is made. As RJM has neither a right nor a legitimate expectation to a disability premium (indeed, the absence of any such right is the basis of his complaint), runs the argument, his claim cannot be brought within the ambit of A1P1, and hence his article 14 claim must fail.

24. Were it not for the decision of the Grand Chamber of the ECtHR in the judgment on admissibility in Stec v United Kingdom (2005) 41 EHRR SE295, I would have probably accepted Mr Howells submission, which appears to be supported by a number of decisions of the ECtHR. In that connection, I would refer to two recent judgments of the Grand Chamber, but there are many other decisions which support the submission. Examples include Gratzinger v Czech Republic (2002) 35 EHRR CD 202, paras 69 to 74, Polacek v Czech Republic (Application No 38645/97) (unreported) 10 July 2002, paras 61-68, and Maurice v France (2006) 42 EHRR 855, paras 63-70.

25. In Kopecky v Slovakia (2005) 41 EHRR 944, the ECtHR said at para 35(b) that A1P1 does not guarantee the right to acquire property", so that a claim could not be brought within A1P1 unless the claimant owned, or at least enjoyed a legitimate expectation to, property. The court then explained at para 49 that there could be no legitimate expectation unless there was a currently enforceable claim that was sufficiently established".

26. In von Maltzan v Germany (2006) 42 EHRR SE92, the point may be made by quoting two conclusions reached by the ECtHR in paras 113 and 117 of its judgment:

The court concludes that the applicants have not shown that they had claims that were sufficiently established to be enforceable, and they therefore cannot argue that they had possessions within [A1P1].

Having regard to the finding that [A1P1] is inapplicable, the court holds that art 14 cannot be taken into account in the present case.

27. In the earlier case of Gaygusuz v Austria (1996) 23 EHRR 364, the applicant claimed that the denial of emergency assistance under an Austrian state scheme, on the ground that he was not an Austrian national, constituted discrimination contrary to article 14. Not surprisingly, Austria argued that the claim must fail because it was not within the scope of A1P1, as there was no right or legitimate expectation to emergency assistance. This argument was rejected by the ECtHR on the ground that [e]ntitlement to this social benefit [was] linked to the payment of contributions to the unemployment insurance fund (para 39) and that, therefore, the right to emergency assistance is a pecuniary right for the purposes of [A1P1] (para 41). Accordingly, the claim succeeded. Most of the decisions after Gaygusuz, observed the court in para 34 of Stec (2005) 41 EHRR SE295, stated that non-contributory benefits were not possessions", although, as pointed out in para 45, there were decisions that went the other way.

28. The problem faced by the Secretary of State arises, as I have indicated, from the reasoning and decision in Stec (2005) 41 EHRR SE295. In that case, the various applicants contended that they had been the subject of discrimination in relation to reduced earnings allowance (REA) under article 14 on grounds of sex. As the court explained in para 15, REA is an earnings-related additional benefit under the statutory occupational accident and disease scheme which was put in place in 1948", which was recast and renamed in subsequent legislation. Importantly, it was a non-contributory benefit. The UKs main submission", as recorded in para 33, was that:

the applications were incompatible ratione materiae with the provisions of the Convention in that non-contributory benefits, like REA , could not be considered to fall within the scope of [A1P1]. The Convention and [A1P1] did not confer a right to receive benefits from the state. It was a matter for the states discretion what provision to make, since there was no right under the Convention to acquire possessions.

29. This argument was rejected by the ECtHR. The courts reasoning, in summary terms, was as follows. First, it would be sufficient for a claim under article 14 to succeed if discrimination occurs not only in relation to the rights which the Convention guarantees, but also to those additional rights which the state has voluntarily decided to provide", and accordingly it was necessary to decide whether the interests of the applicants fell within the ambit or scope of A1P1 (paras 39-40). Secondly, the court had already decided in Gaygusuz 23 EHRR 364that a discrimination claim based on A1P1 could succeed under article 14 where the benefit was linked to contributions (para 43), although it was unclear from the reasoning whether the link to contributions was regarded as essential (para 45). Thirdly, in the light of that uncertainty and of the inconsistent decisions on the question, it was necessary to examine afresh the question whether a claim to a non-contributory welfare benefit should attract the protection of [A1P1] (para 46). Fourthly, because of policy considerations (including consistency with the courts interpretation of article 6 in connection with welfare benefits, and the artificiality of distinguishing between contributory and non-contributory benefits) the correct conclusion was that the applicants claims were within the scope of A1P1.